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PETITIONER: CHIEF OF ARMY STAFF AND ORS.

       Vs.

RESPONDENT: MAJOR S.P. CHADHA

DATE OF JUDGMENT21/12/1990

BENCH: KANIA, M.H. BENCH: KANIA, M.H. MISRA, RANGNATH (CJ)

CITATION:  1991 AIR  460            1990 SCR  Supl. (3) 691  1991 SCC  (2) 288        JT 1991 (1)    54  1990 SCALE  (2)1312

ACT:     Army  Act,  1950:  Sections  3(ii),  (vii),  (viii)  and (xvii),  117, 121, 126 and 127. Army Instruction No.  1/6/74 (As  amended  by Army Instruction No. 2/76) and  No.  81  of 1986.     Criminal Courts and Court-Martial (Adjustment of  juris- diction)  Rules,  1978: Rules 3 and 4.  Army  Officer--Civil offence--Disciplinary proceedings--Attachment--Reduction  in Rank--Suspension--Trial-Choice  between criminal  court  and Court-Martial--Prohibition  of second trial--Accused put  on trial  before  General Court-Martial-Dissolution  of  Court- Martial--Accused whether can be tried by an ordinary  crimi- nal  court  for the same  offence--Validity  of  attachment, reduction    in    rank    and    suspension--Purpose     of attachment----Explained.     ’Offence’--’Civil   Offence’--’Court-Martial’--’Criminal Court’ Meaning of. Code  of Criminal Procedure, 1973: Sections 190(1)  (a)  and 475.

HEADNOTE:     The  respondent,  a  Lt. Colonel, was  alleged  to  have committed a civil offence. He was attached to another  regi- ment  for purposes of completing the  disciplinary  proceed- ings, made to relinquish his acting rank of Lt. Colonel,  on the basis of Army Instruction No. 1/6/74 and suspended  from service.  The  Army  authorities opted for his  trial  by  a General  Court-Martial under the Army Act, 1950. He filed  a writ petition in the Supreme Court challenging action of the Army  Authorities. However, the Court-Martial was  dissolved under  Section  117 of the Army Act and the  respondent  was handed  over  to  civil authorities for trial  of  the  same offence  by  a  regular criminal  court.  Consequently,  the Supreme Court dismissed his writ petition.     Pursuant  to the handing over of the respondent  to  the civil authorities, a complaint was filed against him  before a Magistrate’s court under Section 190(1) (a) of the  Crimi- nal Procedure Code, 1973. The respondent filed a writ  peti- tion in the Punjab and Haryana High Court praying for resto- ration of his acting rank and for revocation of 692

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his  suspension.  A Single Judge of the High  Court  ordered restoration  of  his acting rank by holding that  since  the authorities opted for his trial under the Army Act he  could not  be  handed back to civil authorities for  trial  by  an ordinary  Criminal  Court  on the ground  that  trial  by  a Court-Martial  was not feasible; and in view of his  attach- ment  to  other  regiment suspension should  not  have  been resorted to.     The  Letters Patent Appeal preferred by  the  appellants against  the  decision  of the Single  Judge  was  summarily dismissed by a Division Bench of the High Court.     In  appeal  to this Court, against the decision  of  the Division Bench of the High Court, it was contended on behalf of the appellants that (i) since the Court-Martial could not be  completed against the respondent there was no legal  bar to  his trial by an ordinary criminal court; (ii) Until  the trial was completed, the respondent was neither entitled  to get back his rank nor have his suspension revoked.     On behalf of the respondent it was inter alia  contended that since he was sent to a regular criminal court for trial his attachment could no longer survive. Allowing the appeal, this Court,     HELD:  1. Section 127 of the Army Act, 1950  deals  with successive trials by a criminal court and Court-Martial  and sub-section (1) of section 127 specifically provides that  a person  convicted or acquitted by a Court-Martial may,  with the  previous sanction of the Central Government,  be  tried again  by  a criminal court for the same offence or  on  the same  facts. Under this section there is no general  bar  as such prohibiting successive trials by a Court-Martial and by a criminal court and perusal of the section shows that  even where  a person has been convicted or acquitted by a  Court- Martial of the offence in question, he can be tried for  the same offence by a criminal court, with the previous sanction of the Central Government. In the instant case the  question of  sanction of the Central Government never  arose  because the  respondent was neither convicted nor acquitted  by  the Court-Martial or dealt with under sections 80, 83, 84 or 85. [698H, 699A-C]     2. Section 121 of the Army Act, deals with the  prohibi- tion  of second trial. It has no application to the  instant case  as the respondent was neither acquitted nor  convicted by the Court-martial or by a criminal court nor has he  been dealt  with  under  Sections 80, 83, 84 or 85  of  the  Act. [698G] 693     3. Army Instruction No. 31 of 1986, inter alia  provides that  an officer who ceases to carry out the duties  of  his appointment by being attached to another Unit for  discipli- nary purposes will vacate his appointment or relinquish  any acting rank after 21 days. It further provides that if  such an officer is subsequently acquitted or for any purpose  not brought  to  trial  or his character is  vindicated  to  the satisfaction  of the appropriate authorities at  Army  Head- quarters vide such inquiry as is made under para 346 of  the Regulations  for the Army, such officer will be  reappointed to the post vacated by him and the acting rank of the  offi- cer  will  be deemed to have been held by  him  continuously with effect from the date he relinquished it. The respondent vacated  his appointment and his acting rank 21  days  after his  attachment  to  a different regiment  for  purposes  of completing  the proceedings against him. As he has  not  yet been acquitted nor has his character been vindicated to  the satisfaction  of the appropriate authorities at  Army  Head- quarters  and he is to be tried by the criminal court,  till

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the  trial is completed or given up or till he is  acquitted or  his  character  vindicated to the  satisfaction  of  the appropriate authorities, there is no case for revocation  of the  order  of his suspension or restoration of  his  acting rank. [698C-D, 699G-H, 700A]     4. The only purpose of attachment of an army officer  to a  different  unit  is  that  the  disciplinary  proceedings against  him could be speedily and satisfactorily  completed without  any interference by him. In view of the  respondent being  sent to the ordinary criminal court for trial,  there was  no  question  of his interfering  thereafter  with  the disciplinary  proceedings and in view of that, the order  of attachment against him is set aside. Accordingly the  orders of  the High Court are set aside except to the  extent  that the  attachment  of the respondent to the  other  Unit  will cease and he will be reverted to his original unit. [699E-F, 700B]

JUDGMENT: